PESHAWAR: A local lawyer on Tuesday moved the Peshawar High Court requesting it to declare unconstitutional a provision of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, which allows the Pakistan Bar Council to give a call for nationwide strike.

Ali Azim Afridi filed a petition requesting the court to declare Rule 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976, in conflict with the Constitution.

Rule 176-B states: “No Bar Association or group of Bar Associations, any bar body or forum shall be authorised to give strike or protest call to members of legal fraternity at national level without prior approval of the Pakistan Bar Council.”

The petitioner also requested the court to declare unconstitutional Rule 176-B to the extent of non-observance or defiance of the PBC decisions by lawyers regarding strike or protest.

Seeks PHC orders for council against blocking appearance of people, lawyers before courts

The rule states: “Non-observance or defiance of decisions/instructions of the Pakistan Bar Council by any Bar Council or Bar Association or any Member of the Bar/Advocate shall be deemed to be a gross professional misconduct.”

The petitioner prayed the court to direct the PBC not to block or hamper appearance of his, other lawyers and people before courts.

The respondents in the petition are the federation of Pakistan through the federal law secretary, PBC through its vice-chairman, Khyber Pakhtunkhwa Bar Council through its vice-chairman, PHC Bar Association through its secretary general, PHC registrar and KP law secretary.

The petitioner said the Constitution provided for access to justice, which was both a right in itself and the mean of protecting and restoring other basic rights.

He said the Constitution safeguarded fundamental rights by allowing people to make recourse to the constitutional courts in case those rights were put at stake, resulting from introduction of any law or any custom or usage having the force of law.

The petitioner said the Legal Practitioners and Bar Councils Act, 1973, was enacted in 1973 allowing the PBC to make rules within meaning of Section 55 of the Act.

He said the right to access to justice was a fundamental right provided for by the Constitution and as such, the call of strike and protest at national level prevented lawyers from performing their duty and that, too, to the discredit of people of Pakistan.

Ali Azim Afridi contended that it was a settled matter that where conflict between the Act and rules was irreconcilable, the rule would have to be declared ultra vires.

He said the law did not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner.

The petitioner said discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was susceptible to error, illogical and irrational.

He contended that it was the duty of the judiciary to examine vires of legislation at the touchstone of the Constitution.

The petitioner said the law nowhere provided for taking action over non-observance and defiance of instructions pertaining to call of strike and protest issued by the PBC.

Last week, the lawyers boycotted courts across the province from Dec 9 to Dec 13.

Initially, a three days strike was observed on the call of the KP Bar Council against certain amendments to the Code of Civil Procedure and introduction of a new anti-narcotics law.

On Dec 12, the lawyers went on a strike to protest the killing of their community member, Feroze Shah, in Swat.

The last strike was observed across the country on Friday against the Punjab Institute of Cardiology incident which led to the arrest of several lawyers.

The lawyers also boycotted courts on Tuesday against an explosion, which took place near the entrance to the high court.

Published in Dawn, December 18th, 2019